Application No: C1/01-02(II)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABLEMENT BENEFIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 13 April 2000

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal by the claimant, leave having been granted by the Chief Commissioner, against a decision dated 13 April 2000 of an Appeal Tribunal sitting at Belfast.  That Tribunal had disallowed the claimant’s appeal for Industrial Disablement Benefit in relation to prescribed disease C29.  The prescription of this disease is under Paragraph C29 of Part 1 of Schedule 1 to the Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986 and is as follows –

“Peripheral neuropathy due to exposure to n-hexane or methyl n-butyl ketone.”

     2.	The structure of the above Regulations is that a disease is prescribed in relation to persons who are or have been during requisite periods engaged in prescribed occupations.  The prescribed occupation with relation to disease C29 is also at Paragraph C29 and is as follows –

		“Any occupation involving…-
The use or handling of, or exposure to the fumes of, or vapour containing, n-hexane or methyl n-butyl ketone.”
 
3.	The decision against which the claimant had appealed to the Tribunal was as follows –

“Prescribed disease No C29 known as peripheral neuropathy due to exposure to n-hexane or methyl n-butyl ketone is not prescribed in relation to the claimant because the claimant has not been employed on or after 5 July 1948 in employed earner’s employment in any occupation involving: -

Peripheral neuropathy due to exposure to n-hexane or methyl n-butyl ketone.  

The claim for Industrial Injuries is disallowed accordingly.
Social Security (Industrial Injuries) (Prescribed Diseases) Regulations (Northern Ireland) 1986 Regulation 2(a) and Schedule 1.”

4.	It will therefore be seen that the decision under appeal was a decision to disallow Industrial Disablement Benefit because the claimant was not employed on or after 5 July 1948 in a prescribed occupation.  The claimant appealed to the Tribunal by letter dated 29 March 1999.  It is quite clear that her grounds of appeal related to her considering that she did have the relevant prescribed disease.

5.	By the time the matter reached the Tribunal there had been a change in the statutory provisions relating to the adjudication of Industrial Disablement Benefit.  With effect from 5 July 1999 decisions on diagnosis and disablement questions, which had formerly been made by adjudicating medical authorities, were for the Department to decide.  These questions could no longer be referred by the Department to adjudicating medical authorities for decision.
Decisions made by adjudicating medical authorities prior to that date were to    be treated as if made by the Department.

6.	The Department prepared a supplementary submission which set out what the Department considered to be the Tribunal’s jurisdiction in relation to this matter.  That submission stated that, should the Tribunal decide that prescribed disease NoC29 was prescribed in relation to the claimant (in other words if it should decide the occupational prescription in her favour), other questions relating the claimant’s entitlement to disablement benefit could be decided by the Tribunal.  The first of these questions, in the Department’s submission, was whether the claimant was suffering from the relevant prescribed disease.  This was referred to as a diagnosis question.  The Department further pointed out that the new Decisions and Appeals Regulations did not include any provision for the Tribunal to direct the Department to determine the diagnosis question.

7.	The Tribunal, having reviewed the claimant’s evidence and having held a hearing of the case at which the claimant was represented by counsel, dismissed the appeal.  It reasoned that the evidence presented to the Tribunal in relation to the question of whether the claimant was employed in an occupation prescribed in relation to PDC29 was somewhat unsatisfactory but that it did not consider it necessary to determine that issue as it was satisfied that the claimant was not in fact suffering from the prescribed disease in question.

8.	The claimant appealed to me against that decision.  Her grounds of appeal were set out in a letter dated 23 April 2001 and received in the Commissioner’s office on 30 April 2001.  Observations thereon were made by the Department by letter dated 23 August 2001.  An extension of time for making comment on the Department’s observations having been granted, the claimant’s new representative, The Law Centre (NI), made comment by letter of 8 October 2001.  I decided to hold an oral hearing in this case and by letter of 12 February 2002 directed the parties to prepare, submit and exchange skeleton arguments within five weeks and to prepare detailed written submissions on certain matters.  The Department made submissions and a skeleton argument on 14 March 2002 but unfortunately (I understand due to staffing problems) the Law Centre did not make same until 9 May 2002.  This was the day prior to the hearing which was on 10 May 2002.  However, Mrs Gunning, who attended the hearing to represent the Department, indicated that she was not prejudiced by the Law Centre’s delay and was prepared to proceed.  I therefore proceeded with the hearing.

9.	Mrs Gunning attended and Mrs Carty (who had recently taken over the case) represented the Law Centre at the hearing which was also attended by the claimant.  I am grateful to both representatives for their assistance.

10.	There was a fair degree of common ground between the representatives, both of whom considered that the Tribunal had power to deal with the question of whether or not the claimant was suffering from the prescribed disease (the diagnosis question).  Both also considered that, while it would have been preferable for the Tribunal to have dealt initially with whether or not the claimant worked in a prescribed occupation, it was not necessarily an error of law for a Tribunal to deal with another one of the conditions first as the Tribunal did have a discretion to deal with issues raised by the appeal.  However, both were also of the view that this discretion had to be exercised judicially and that there had arisen a natural justice issue as to whether or not the claimant was prepared at the hearing on 13 April 2000 for the Tribunal to deal with the diagnosis question.

11.	Referring to the supplementary submission of the Department to the Tribunal, both representatives stated that this submission had indicated that it would only be if the Tribunal found in favour of the claimant on the occupational question that it should proceed to deal with the diagnosis question.  I was referred to two decisions of Commissioners in Great Britain – decisions CI/3370/1999 & CI/531/2000, neither of which it appears was cited to the Tribunal.  These cases decide that it is not an error of law for a Tribunal to proceed to determine the diagnosis and other entitlement issues if the prescription question is decided in the claimant’s favour but the decision whether or not to do so is at the Tribunal’s discretion and such discretion must be exercised judicially.

12.	I would go further and am of the view that it is not an error of law for a Tribunal to deal with the diagnosis question before it deals with the prescription question, particularly where the diagnosis question is raised by the appeal as it undoubtedly was in this case.  I am, however, in agreement that the discretion must be exercised judicially.  A party should not be taken by surprise by this question being dealt with, without any decision having been taken by the Tribunal on the occupation question. In this case it is true that the supplementary submission did make reference to the Tribunal’s power to deal with the diagnosis question, albeit referring to this power as being conditional on the occupational question being decided in the claimant’s favour.  It is also true that the Tribunal very properly raised that question at the hearing.  It is also true that the claimant was represented at the hearing by counsel.  Mrs Carty very properly conceded that the medical evidence produced by the claimant was not in her favour and she had no fault to find with the Tribunal’s conclusion on that evidence.

13.	However, there is no doubt that the Department’s disallowance decision in this case had been based on the occupational condition not being satisfied and that the balance of the submissions made on the claimant’s behalf at the hearing before the Tribunal related to that matter.  I can trace no record of the Tribunal having asked the claimant’s representative whether or not he was in a position to proceed to deal with the diagnosis question at the hearing and whether he realised it could be decided that day without the occupation question being decided.

14.	I consider it to be a very finely balanced issue as to whether or not there was a breach of the rules of natural justice in this case but after some consideration I consider that on the balance of probabilities there has been such a breach.  The Tribunal in this case should either have decided the occupational question or should have warned the claimant that it was going to proceed directly to the diagnosis question and asked if the claimant was in a position to proceed to that without a decision on prescription.

15.	I would emphasise that it is not necessary for a Tribunal to do this in every case.  Often it will be obvious that the parties have made submissions on both questions and either one can be considered first and it is largely because of the conditional terms of the Department’s submission together with the absence of any record of any enquiry as to the preparedness of the parties to deal with the diagnosis question that I have made my decision.  The record of proceedings does show mention of the diagnosis question but not, in my view, in terms which indicate that the claimant’s representative realised it was being dealt with in full that day.

16.	I do not think that what was under appeal to the Tribunal was one question, i.e. the prescription question.  That is not how the new system of industrial injuries adjudication works. What was under appeal to the Tribunal was a decision on a claim for Industrial Disablement Benefit.  It is true that that claim was disallowed on a particular ground.  While a claimant may wish to have a Tribunal decision on that ground it does not appear to me that that particular ground or question is the decision which was appealed to the Tribunal.  It is the decision on the benefit entitlement which is under appeal.  It is therefore within the discretion of the Tribunal as to which of the conditions, all of which must be satisfied, it approaches first and whether it proceeds further will depend on its decision on that condition.  While it is good practice that the matter be approached in a sequential manner and that the first question that is considered is the grounds on which the disallowance is made, that is not a matter of law.  There will be cases where, because one of the conditions for the benefit is not satisfied, there is no need to explore the others.  Provided there are no natural justice issues of any of the parties being taken by surprise I can see no objection in law to any condition being considered first.  These questions raised by the conditions of entitlement do not exist in the air, they exist relative to benefit entitlement and it is the decision on benefit entitlement which is appealed to the Tribunal.  

17.	I set the decision aside as in error of law and I remit the matter for rehearing before a differently constituted Tribunal.  I had initially considered that I might be able to give a decision on the matter but Mrs Carty informs me that she has additional evidence to submit.

18.	I consider that it is also a matter for the new Tribunal’s discretion as to whether or not it deals with the prescription or the diagnosis question first.  Both are obviously raised by the appeal and it is up to the Tribunal as to which questions it deals with and in what order.  The claimant is therefore on notice that either one of those two questions or, if one is decided in her favour, both questions may be dealt with at the remittal hearing. She should therefore have all the evidence which she wishes to produce relative to both questions ready and submitted to the Tribunal and to the Department in advance of the hearing and within a reasonable time.  As the hearing cannot be indefinitely delayed that obviously implies that any additional evidence should be submitted as soon as reasonably practicable.  The Tribunal is, of course, entitled to list and proceed with the case within a reasonable time whether or not further evidence is furnished.  The claimant has already had a considerable period of time to assemble her evidence on both questions.

(Signed):  M F BROWN

COMMISSIONER

13 JUNE 2002